Eliot Caroom/For The Star-LedgerRichard Gerbounka, the mayor of Linden, at a council meeting in August 2009.

LINDEN — For decades, Linden voters have cast ballots to directly elect the person who presides over the city’s governing body.

It may be the only place in New Jersey where "council president" is an elected position, rather than one appointed by the council members as a whole. And now, for the first time in memory, the custom is raising some big questions among city leaders: Is the election of the council president even legal?

City attorney John Hudak said that the answer is unclear and should be decided by a judge in state Superior Court, he wrote in a recent memorandum. Requested by a new council member and obtained by The Star-Ledger, the Feb. 4 memo may spark the next political brouhaha in this city of more than 40,000, which elected a new council president last year.

That man, James Moore, was not happy to see Hudak’s six-page opinion, which explores more than 100 years of legal history at the state and local levels, noting that a form of government that allowed for elected council presidents was abolished years ago. In a fiery response letter to Hudak and council members, Moore argued the city was grandfathered into an earlier form of local government.

"I am a duly elected Council President and will continue to conduct myself as such," Moore wrote last week.

Mayor Richard Gerbounka is using the issue as an example of why he wants Linden to change its form of government, which involves a system of 11 council members who bear much of the responsibility for leading the city. The change, which would happen if the public voted to approve a new charter, would give the mayor more power, handing over some of the responsibilities that currently fall to council members.

The mayor also said he worries about what would happen if anyone were to file a lawsuit challenging the election of the council president and a judge were to rule against the practice.

"What occurs then with all the ordinances and issues that have been decided over those years?" Gerbounka asked.

Matt Weng, the staff attorney at the New Jersey State League of Municipalities, said it wouldn’t be an issue. "He’d still be a member of council," he said of the president.

Moore said in a phone call last week he didn’t want to comment before discussing the memoranda with council members. Hudak also declined to comment, citing attorney-client privilege.

After reading both memos, Weng said the issue is "complicated, and it’s certainly a unique situation to Linden." It will likely need to be decided by a judge, he said.

"He definitely went into some great depth, tracing back to 1897 and their form of government," Weng said of Hudak’s research, later adding that "there are some cases where municipalities have been able to retain their former form of government, even when that particular form of government has been repealed or eliminated."

Councilman Peter Brown, who took office for the first time last month, said he originally raised the issue with Hudak. Brown said he’s angry that Moore’s response to the issue was so dismissive. He sent an e-mail response to council members: "I said, ‘No, this is not a dead issue. This is something we seriously need to talk about.’"